So There's Trouble in the Tablet World... Recently, tech giant Apple sued Samsung under trademark infringement for allegedly copying the style, look, and feel of their beloved iPad and iPhone to create the Galaxy Tab and Galaxy X phones. Just the other day, a motion to expedite discovery was filed, requesting Samsung offer up samples of their Galaxy S2, Galaxy Tab 8.9, Galaxy Tab 10.1, Infuse 4G, and 4G LTE or "Droid Charge". The request includes not only products, but packaging and inserts as well. Apple claims the products are confusingly similar, with icons and interfaces strikingly similar on the Samsung devices. Are the items/brands confusing you? Let's figure this one out... A little bit about trademarks: • They never wear out as long as you keep them in use. • With reasonable care, they can be a perpetual asset. • They become more valuable with use. • They cannot exist or be protected apart from actual use. Without use, the mark cannot perform its function of identifying the products or services of a particular source and differentiating them from the products or services of others. Their function is to drive business. Selection of a trademark or service mark: • From a legal perspective, coined or "fanciful" works, such as EXXON or KODAK, form the strongest marks and are entitled to the broadest scope of legal protection. • Ordinary words applied to unrelated goods or services are also strong marks. For example, "Apple" computers! No relation of fruit to technology, so the novel title sticks and markets well. • Marks describing a quality or element of the goods cannot be protected unless through extensive use, the relevant purchasing group has come to associate the marks with the source of the goods or services. • Generic words are not protectable because everyday designations cannot be monopolized. Testing the mark: When testing for trademark infringement, courts will look at: Strength of the mark, similarity, and proximity in the marketplace. Strength -The Apple "apple" trademark is pretty strong, arguably one of the strongest in the tech market, or any market. It is easily recognizable, and has a following all its own. The "S" for the Galaxy products is a good, distinct mark as well, but does not have the following of the apple. Similarity -In regards to interface and icons, the Samsung device does have some which are similar to the Apple icons, but we don't believe it would lead one to think they were using an iPhone by the time they began using the device. However, this leads us to the prong of similarity. Similar icons is a point of contention when they are advertised on packaging and commercials. Seeing these icons in commerce could actually lead one to believe it was an Apple-related device, if they were not paying attention, or were not as tech-savvy as others. This prong will weigh heavily in court. Proximity -Finally, proximity in the market. This prong will definitely raise and answer some questions. Of course these devices are in the same market, sold in the same places (with the exception of there being Apple stores, but no "Samsung Stores"), and are head on competitors of one another. When deciding whether or not consumers will be confused, the undeniable proximity of these items in the market will be a major determining factor. In many cases, sales could be confused, especially based on the look and feel of the devices. Sales contribute to part of the story; Apple users are finding a suitable substitute, or not-so-savvy users are marketed into the wrong purchase. The court should have an interesting time weighing these factors. We'll keep watching this one to see how the questions of monopoly, perfect competition, and obviousness in innovation are answered. Stay tuned!

Latest Posts

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.